Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Fraser of Carmyllie moved Amendment No. 163:

Page 57, line 9, leave out ("removing") and insert ("the removal of").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 164 to 166:

Page 57, line 9, at end insert ("; and"
( ) that, if an order is made, there will be a person specified in the application who is capable of taking responsibility for the provision of appropriate care for the child and any other member of the family who requires such care and who is, or will be, residing in the family home (in this section and sections 71 to 74 of this Act referred to as an "appropriate person").").
Page 57, line 10, leave out ("No order shall be made") and insert ("No application under subsection (1) above for an exclusion order shall be finally determined").
Page 57, line 15, at end insert:
("(3A) Where, on an application under subsection (1) above, the sheriff—
(a) is satisfied as mentioned in that subsection; but
(b) the conditions mentioned in paragraphs (a) and (b) of subsection (3) above for the final determination of the application are not fulfilled,
he may grant an interim order, which shall have effect as an exclusion order pending a hearing by the sheriff under subsection (3B) below held within such period as may be specified in rules made by virtue of section 74(2)(bb) of this Act.
(3B) The sheriff shall conduct a hearing under this subsection to

13 Jun 1995 : Column CWH120

consider an application under subsection (1) above and an order granted on that application under subsection (3A) above within such period as may be specified in rules made by virtue of section 74(2)(bb) of this Act, and, if satisfied at that hearing as mentioned in subsection (1) above, he may, before finally determining the application, confirm or vary the interim order, or any term or condition on which it was granted, or may recall such order.
(3C) Where the conditions mentioned in paragraphs (a) and (b) of subsection (3) above have been fulfilled, the sheriff may, before finally determining the application, grant an interim order.
(3D) An order under subsection (3B) or (3C) above shall have effect as an exclusion order pending the final determination of the application.").

On Question, amendments agreed to.

[Amendment No. 167 not moved.]

Lord Fraser of Carmyllie moved Amendments Nos. 168 and 169:

Page 57, line 42, leave out subsection (7).
Page 58, line 3, leave out from ("order"") to end of line 4 and insert ("includes an interim order granted under subsection (3A) above and such an order confirmed or varied under subsection (3B) above and an interim order granted under subsection (3C) above; except that in subsection (3) above and in section 73 of this Act, it does not include an interim order granted under subsection (3A) above;").

On Question, amendments agreed to.

On Question, Whether Clause 70, as amended, shall stand part of the Bill?

The Earl of Balfour: Perhaps I may ask a question about the definition of "family home" at the top of page 58 of the Bill. It has been my experience in reading previous legislation that the word "curtilage" is often used to cover the surrounding areas. I am just wondering whether between now and the Report stage my noble and learned Friend would consider the possibility of adding that word. That is my only point.

Lord Fraser of Carmyllie: It certainly is the case that often the word "curtilage" is included and I shall certainly have a look at that. If we were to go one step further forward into Clause 71 and have regard to the things that might be done in terms of such an exclusion order, other than simply entering the house, I suspect it would be possible so to frame the interdict or exclusion that it was an exclusion from more than just the inside of the dwelling house itself and might, for example, include a specified area in the vicinity of the home. It might be, for example, as I am sure the noble Earl will appreciate, that one would want not only to exclude that individual—that named person—from the garden but possibly from the whole street or indeed even the village.

The Earl of Balfour: I am grateful to have had the opportunity to ask the question.

Clause 70, as amended, agreed to.

Clause 71 [Effect of, and orders etc. ancillary to, exclusion order]:

Lord Macaulay of Bragar moved Amendment No. 170:

Page 58, line 20, after ("authority") insert ("or Children's Reporter").

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 171, 172, 174, 178, 180 and 182. Apart from

13 Jun 1995 : Column CWH121

Amendment No. 171, these amendments insert the words "or children's reporter" after the word "authority" referring to local authority. It has been pointed out that that should be "principal reporter" rather than children's reporter. I accept that the amendment is to that extent defective. The amendments are put down in the hope that the Government will accept the principle that by bringing the principal reporter into play so to speak, there will be another dimension quite apart from the local authority interest. Of course, the reporter is the person who is most likely to have most knowledge of the background to any of the proceedings taking place in respect of exclusion orders.

Amendment No. 171 relates to the question of the removal of items from the home. It demonstrates the difficulties in the application of provisions relating to the removal of necessary items from the home and is an attempt to broaden and to give flexibility to the removal of, for example, joiner's tools or plumber's tools or whatever they might be, or indeed a lawyer's books, and provides that the person concerned may come back to get them out of the house—although they may not have been removed in the first place. I trust that the Government, if not accepting the amendment, will at least look at the principle behind it. I beg to move.

The Earl of Balfour: Again, this is another case where I wonder whether the Government should have included the principal reporter. I had been quite concerned about that myself: I feel he is such an important person.

On Amendment No. 171, it comes to my mind that, supposing the person you wanted to exclude had a hire purchase agreement for, say, a gas cooker, it would be disastrous if that gas cooker were removed because the family concerned would have nothing to cook with. That is where I am rather grateful to the noble Lord, Lord Macaulay, for having tabled these amendments, because they relate to matters which came to my mind.

Lady Saltoun of Abernethy: I am a little puzzled by the amendment because, when I read it, I understood the noble Lord, Lord Macaulay, to mean that it would enable a chap who was being excluded to take, say, his plumber's tools or whatever with him, or to come and get such tools, but that does not look to me like the effect of it. It looks to me as if his wife, if she did not like him, could refuse him permission to get his tools. I am just a little puzzled and I wonder whether it is possible for the noble Lord to clarify the position.

Lord Macaulay of Bragar: I must say that, looking at the wording of the exclusion order with respect to Amendment No. 171, I have a slight difficulty with it myself. But the principle is there and it may very well be that the wife could stop the person removing any other items from the house. The phrase "or other applicant" is rather loose, but the amendment was tabled to ascertain the Government's reaction to it. It may be that the Government take the view that it is not very intelligible, but I hope that it is. The other "other applicant" could be the person who is being excluded, of course, but then that is almost a contradiction in terms. I accept that the amendment is not too happily phrased,

13 Jun 1995 : Column CWH122

but it has been tabled to raise the issue and to obtain a response from the Government.

Lord Fraser of Carmyllie: While in many respects this amendment is effectively, consequential upon a change that was proposed in Amendment No. 159 which has already been debated, it nevertheless raises an issue of greater substance than is usually the case in consequential amendments.

At the time of the discussion on Amendment No. 159, I indicated our firm view that it would not be appropriate to extend the powers of the reporters because their responsibilities lie totally in the area of children's hearings. Their focus is very much on measures of supervision for the child. To extend the reporter's duty as proposed would be to risk a serious dilution of that focus.

Since the Committee has already agreed that it would not be appropriate to allow the reporter to apply for an exclusion order, it would seem to follow that he should not have a part to play in any of the subsequent proceedings relating to ancillary orders, interdicts, warrants, or powers of arrest. Accordingly, in our view, Amendments Nos. 170, 172, 174, 178, 180 and 182 would not be appropriate.

Amendment No. 171 deserves, possibly, a separate mention. The removal of subsection (2) and, indeed, most of subsection (3) would make what remained of the clause unworkable, since the ejection of the named person and the prevention of his re-entry without permission would no longer be possible. As the noble Lord will appreciate from that explanation, the whole purpose of exclusion orders is thus defeated.

There was some consideration also in the discussion about the matter of the tools of the named person who might be excluded. That matter could be dealt with by the existing provisions of Clause 71(3)(c)(ii) because while that relates to the granting of an interdict, it also allows for a particular exception. It states:

Next Section Back to Table of Contents Lords Hansard Home Page